Friday, May 22, 2009

Empathy and Justice

I have thus far resisted addressing the criticism directed by some conservatives at President Obama's stated goal of selecting a Supreme Court nominee who, among other things, has a strong sense of empathy for his or her fellow human beings and the difficult circumstances in which they sometimes find themselves. I have resisted mostly because the critique is laughably implausible. Obama never said that he thought empathy was the only characteristic necessary for judging, nor did he say anything like what the critics attribute to him: I want judges who will ignore the law and vote based on their own subjective preferences for some people and interests over others. Instead, Obama made a point that is and has been a commonplace for over a century: In the sorts of hard cases that reach the Supreme Court, there are usually legitimate legal arguments for a variety of results; in following the law as they best understand it in such cases, judges will invariably be influenced to some extent by their values and life experience; and therefore, in addition to intelligence, expertise in the law, and sound judgment, a judge ought to have empathy so that he or she can put himself or herself in the shoes of the litigants who come before him or her.

Thus far, liberals and moderates who have come to the defense of Obama's quest for empathy have mostly emphasized the point just made--that conservatives have badly misinterpreted what the President meant. But I think the counter-critique can go further. Everybody who is not utterly autistic or sociopathic feels some empathy. It is almost impossible to interact with others--and have a sense of what they are saying and doing--without at least a minimal capacity to imagine how the world looks through their eyes, to understand their actions as those of other sentient beings rather than as those of unthinking, unfeeling robots. The question, therefore, is not simply one of the capacity for empathy but whether a prospective judge feels empathy selectively, and if so, who gets selected for empathy.

In an important sense, liberals and conservatives both engage in selective empathy. Consider criminal procedure cases. More so than conservatives, liberals empathize with people charged with crimes. In some instances, that is because the liberals are worried about the possibility that innocent people will be wrongly punished; in other instances, liberals empathize with defendants even though they are guilty, on the ground that they are entitled to be treated with dignity. Criminal procedure conservatives have less empathy for those charged with crimes. However, conservatives do not simply want to enforce the letter of the law against the defendant out of a sense that the law is the law. Quite the opposite.

In criminal procedure debates, conservatives often accuse liberal judges of letting criminals off on "technicalities." But that is exactly the opposite of the point some conservatives make against Obama. In the criminal procedure context, the conservatives are saying that notwithstanding some technical requirement of the law--e.g., that there be a warrant to execute a search--the result they favor--criminal conviction--ought to occur. Why?

Partly it's because of the conservatives' lack of empathy for criminal defendants, but it's also partly because conservatives are moved by their own empathy for crime victims. This explains why judicial opinions by conservatives denying criminal defendants' rights often begin with a description of the grisly crime and the victim's suffering, even when those details of the crime are irrelevant to the legal issue, and even when the amount or nature of the suffering does not go to the culpability of the defendant. Similarly, victim impact statements--upheld by a conservative Supreme Court majority in Payne v. Tennessee--are based on the idea that focusing on the technical legal question of the defendant's culpability risks paying insufficient attention to the interests of victims.

To be clear, I am not criticizing the conservative Justices for feeling empathy for crime victims. That is wholly natural and appropriate. I am criticizing those politicians and pundits who think that "empathy" is simply code for "liberal" or "judicial activist."

So, political posturing aside, what is the proper role of empathy in judging? I think Tony Kronman's book, The Lost Lawyer, though problematic in some other respects, got it about right when it described the soul of legal wisdom--which can, for these purposes, be equated with judicial wisdom--as the ability to see an issue from multiple perspectives. The point here is not simply that one can articulate arguments for different sides; rather, Kronman says, and I agree, that a wise counselor or judge can actually put herself in the shoes of those whose arguments she is trying on. That is, in a word, empathy--and what one wants in a judge is both a large and a wide capacity for it. So, in a case like Payne, it's not enough to feel the pain of victims or of defendants. A wise judge or Justice must be able to feel both perspectives as she makes the most sense she can of the law. If that's a code word for anything, it's "justice."

18 comments:

There's another factor lurking under the "empathy" debate: The usually ineptly stated "issues presented for review" that almost always ignore that there are people behind every lawsuit. When I see something like this:

Whether a party may immediately appeal a discovery order to disclose materials said to be covered by the attorney-client privilege. (Mohawk Indus., Inc. v. Carpenter, No. 08-678 (to be argued 2009 Term))

I must wonder whether I'm back in Civil Procedure listening to yet another hypothetical from a professor who wants a guest slot on The Paper Chase, not whether the "rule" to be announced is:

(1) A hard case that makes bad law;(2) An easy case that makes bad law;(3) Anybody really cares;(4) There is a victim with a grievance seeking justice, for some value of "justice"

Then, later, when one reads the dry factual summary in the matter -- or, perhaps, a lament opening a dissent ("Poor Joshua!") -- it becomes a bit clearer what is happening: An attempt to make law into something that might be replicated in a laboratory.

A critical part of being a judge is recognizing that rulings have human consequences to real human beings. The President is calling that "empathy" in this context, because today's news cycle/system and rhetoric of public debate require easy labels.

I think the above poster's comments, and to a lesser extent, Mike's criminal procedure examples, show why conservatives are concerned.

Empathy - which is the ability to recognize or "put one's self" in another's state of mind - is something that can really only be experienced with other beings. For far too many this means other human beings, but that aside, at a minimum it means another being. This, I think, is the legitimate policy concern of conservatives regarding empathy.

For example, in a dispute between Exxon and Exxon refinery over a contract dispute I can't see empathy playing much of a role at all. As between Exxon and "the little guy", however, concerning some toxic tort claim, empathy can really only run one way - to the advantage of "the little guy." That is the effect of C.E.'s statement "A critical part of being a judge is recognizing that rulings have human consequences to real human beings."

When an Exxon tanker is in the chain of causation of an oil spill that killed "the little guy's" wife, where is the "empathy" for Exxon? It, in any meaningful use of the word "empathy", does not exist - cannot exist. Exxon is just not an entity for which one can experience a feeling of empathy.

So, while I agree that too much is being made by conservatives of the "empathy" search, too little is being recognized by liberals. Both would be well served (well, the liberals would at least) by being more honest about what the empathy code word really means.

It means a judge with liberal leanings. And there is nothing wrong with a liberal President attempting to influence the Supreme Court with his or her values. Conservatives did it exceedingly well over the last 20 years. Liberals can too. At a minimum, America would be better served if both sides stopped hiding what they want.

"Empathy" may merely be a shorthand way of saying that a person is able to anticipate the practical effects that judicial decisions have on people generally. As Oliver Wendell Holmes famously said, "the life of the law is not logic, but experience". We want people on the bench who have experienced life, and the cosseted children of privilege whose lives are buffered by wealth, connections, and a general insularity from the hazards of life almost invariably make bad decisions, and some spectacularly so. "Empathy" may also mean what Thomas Jefferson referred to in the Declaration of Independence as, and I am paraphrasing, "a decent regard for the opinions of mankind". Conversely, an invocation of abstract principles alone, and without regard to their application to real people, have brought us the worst tyrannies in recent human memory.

I keep coming back to Brown v Board as an example of empathy put to good use.

On paper, Plessy looks pretty good -- a conservative and limited reading. Only with a connection to the real world and different perspectives could the Court conclude (in Brown) that separate but equal is definitely NOT equal.

I am worried about Obama's claim that the constitutional text gives out in five percent of cases, and that in those cases "the critical ingredient is supplied by what is in the judge's heart". To me this is just an invitation to decide cases in accordance with one's personal predilections. If I empathize with white racists, then I may be perfectly happy with Plessy. If I empathize with white contractors over black contractors, then I may be perfectly happy with Adarand. The invitation to empathize in hard cases is an invitation to abjure the search for principle in such cases. This is very dangerous, and against the spirit of the law. Obama is choosing someone whose heart is in the right place (from my perspective). But that is a historical accident. In the future, a President could cite Obama's principle to justify the nomination of a complete bigot. I am disappointed in Obama, from whom I would have expected more in the way of sensitivity to the difficult issues involved in judicial decision-making in cases of vagueness and ambiguity.

Much of my thinking on the law's logic / emotion dicotomy goes back to Professor Edgar Bodenheimer's classes on Jurisprudence and the legal philosophy that I took as a student at the UC Davis School of Law some 40-odd years ago. Fast forward to the present debate, where "empathy" as become for some a shorthand code for a "My way or the highway" approach to judicial decisionmaking. I think Associate Justice Sotomayor got it right the first time; our emotions are the foundation on which we make any decision, what to buy, who to marry (or not), and that logic simply connects the dots to ends that feel acceptable. The trick is to develop a feeling of reverence and respect for the principles on which law is based, rather than the life situations of the litigants in particular cases. The fundamental assumptions that underlie equity jurisprudence serve to support the rule of law as an ethical construct that serves human needs. For every rule there is an exception; for every maxim of jurisprudence that points in one direction, there is another that goes the other way. A blind application of "rules" without judgment as to their breadth and appropriateness defeats their purpose and breeds disrespect for the law itself. A judge's feelings about both the law and their instant application to the facts before her should have a binocular effect, giving dimensionality and perspective to what otherwise be a logical syllogism. As we know from living with computers, logical constructs from diverse parts of a system do not always mesh well in practice. The fault lies not with the logic, but with its application within an overall system. In terms of the propositions within a syllogism, the premises are often soft, as the language of the law is stated in general terms, and advocates tend to want to interpret ambiguities in language in ways that support the particular outcomes they support. The judge is supposed to be able to bring a clarity of focus as to the purpose of the law and the weight of the facts in adjudicating the competing claims of the parties, and without that full dimensionality of vision, she cannot satisfy the requirements of law or of human society in doing her job.